Pedophiles, legal loopholes and judge blaming

Australia has a system of representative government. That is, we delegate democratic power to our “representatives”. We elect some “representatives” - politicians - while others are appointed by governments - judges. In theory, this system of government provides citizens, and therefore the country, with expert leaders and policy-makers. Indeed, we rely on our “representatives” to make sound policy decisions that will imbue a sense of security and advance national prosperity.

Although both politicians and judges are central to our system of government, there is plenty of confusion about where they fit and the roles they play.

I recently read “Paedophiles off police radar” a news report about a "convicted" pedophile who successfully applied to have his name removed from the Child Protection Register in New South Wales. (I say "convicted" because there is no criminal definition of pedophilia in Australia - it is a clinical term).

The NSW Supreme Court decided the case in January this year. It seems the media picked up on the case because, as a result of the decision, a number of people convicted of child sex offences had their names removed from the Child Protection Register too.

The NSW Police Minister, David Campbell, promised to close the legal loophole and make sure all people convicted of child sex offences have their names recorded in the Child Protection Register, including those whose names have been recently removed. The action proposed by Campbell is reasonable in the circumstances and what citizens should expect of our elected representatives. Politicians, those people who create and amend legislation, must sometimes respond to judicial decisions by closing legal loopholes.

One of the things that strikes me about media reporting of the case is the underlying idea that the judge is to blame. It is judges, in this view, who are soft on child sex offenders and therefore responsible for placing children at risk.

The idea that judges are out of touch with community expectations is often the theme of popular discussion about our legal system. When the discussion turns to “pedophiles” the criticism intensifies.

One online forum includes a scathing comment about the judge in the current case: “These soft ‘look after the crim’ judges should be made to retire.” Other threads about “pedophiles” reveal similar thinking about judges: “I reckon half the judges are friggin pedos, the mongrels.” And: “Paederasts are known recidivists. When will the judicial system start to realise what ordinary people already know? The old saying, ‘The law is an ass’ must be the understatement of the century.” In response to the sentence imposed on a convicted child sex offender: “… as usual the Judicial System is a JOKE what was this Judge thinking?”

The judge-blaming forum comments highlight outcomes rather than process, and reinforce the idea that many citizens are unclear about how our system of government operates - particularly the different roles played by the judiciary and politicians.

This is not the place to undertake a detailed examination of the judgment in the case at hand. Nor do I want to argue about the merits of the decision. Those of you who read judgments, especially those of higher courts, already know they are carefully constructed. Instead I want to focus on separating the roles of judges and politicians.

Judges examine and interpret the law. That is why they refer to prior cases and legislation. Both are sources of law in Australia. Unfortunately, legislation is often ambiguous. Sometimes it is poorly drafted and sometimes it was written long ago and the meaning has been lost. Judges often look beyond the legislation and examine the intent of the parliament - those who pass the legislation - when making decisions.

In the current case the judge does exactly that. He refers to the second reading of the Bill, by the Hon Carmel Tebbutt in the NSW Legislative Council, which explicitly excludes some convicted sex offenders from having their names recorded in the Child Protection Register. In other words, the judge examined the parliament’s intention when formulating a decision in the case. Of course, the judge also considered case law and legislation.

During the second reading speech the Hon Carmel Tebbutt explained that in some instances convicted sex offenders are not considered to present an ongoing risk to the community. Some citizens will be aghast at the idea expressed by the Minister. That is fine. The question is one about what action citizens can take when these things come to light.

A spokesperson for Bravehearts, lobbyists and advocates for change in how society deals with child sex abuse, was cited in the news article I referred to at the outset: “the community would view the judge's decision as completely unacceptable.” The outcome of the case might be unacceptable to many but it is unlikely to be the judge’s decision at fault. Instead the decision exposes a loophole in the law. The law created by politicians and one that, in this case, the Minister has vowed to close.

Politicians rarely speak out in support of judges. I suppose politicians are happy when the community blames judges for “unpopular” decisions rather than directing disquiet towards themselves.

If citizens are concerned by the decisions of courts, instead of taking a default judge-blaming position, they could examine the issue at stake carefully and then lobby politicians to change the law. Not only would that approach increase citizen involvement in democracy it would also hold politicians accountable. After all, making and fine-tuning law and policy is what we elect politicians to do.